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Lawsuit Over LEED Documentation

Lawsuit Over LEED Documentation

written by Stuart Kaplow

A case filed last week in a California court is a prime example of the importance of contract documents in a LEED project.

Earlier this year the City of Palo Alto gave notice firing Flintco Pacific, Inc., the general contractor responsible for construction of the Mitchell Park library, a proposed LEED Platinum project. With a performance bond in place, the City and the surety announced in early March that they has negotiated a takeover agreement that will allow a new contractor to complete construction.

But the current dispute playing out in letters between counsel for Palo Alto and Flintco is the claim by the City that when Flintco’s contract was terminated, it did not turn over the documentation necessary to pursue LEED certification. In a letter reprinted in part in the local print media, Assistant City Attorney Cara Silver said, “very little of the LEED documentation appear to be present.” And in a follow up letter from the City’s outside counsel, David Ginn to Flintco, also made public, Palo Alto further claims the missing documents relate to the “source and specific type of materials incorporated into the project, methodologies employed by the contractor to reduce waste and impact, and a significant number of other requirements.” Flintco responded that it had made all of the documents in its construction trailer available to the City and that these documents are responsive to all the deliverables identified in the construction contract.

And while Flintco argues that its contract was improperly terminated after the building was more than 97% complete that dispute may have to wait for another day.

It is disputes and differences over the documentation necessary to pursue LEED certification that apparently lead Flintco to commence a Petition for Writ of Mandamus against Palo Alto (.. yes, the general contractor sued the City) in Flintco Pacific, Inc. Vs City Of Palo Alto, filed July 17, 2014 in the Superior Court of California, County of Santa Clara, asking the court to declare that the City is violating the California Public Records Act and to command the City to produce all records relating to Flintco’s information request for 49 categories of documents related to the construction including writings related to LEED certification.

While the merits of the construction dispute are beyond the scope of this blog post, this matter is significant because if highlights the importance of construction contracts expressly providing for who owns the LEED documentation. A common contract provision, but not found in the contract in this instance, provides,

Any LEED certification plan and materials prepared to support the LEED certification application are intended for use by the Owner with respect to this Project. [LEED Consultant] grants the Owner a nonexclusive license to utilize, including reproduce, the plan and those materials for purposes related to the building that is the Project. [LEED Consultant] shall be deemed the author and owner of the LEED certification plan and the materials prepared to support the LEED certification application, and shall retain all common law, statutory and other retained rights, including copyrights.

Do you know who owns the LEED documentation on the project you are working on?



July 29, 2014 0 comment
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Local Energy Rules Episode 21 – One City Utility is Carbon Neutral, Today

Local Energy Rules Episode 21 – One City Utility is Carbon Neutral, Today

written by John Farrell

It’s one thing to own your utility and have a commitment to renewable energy, but it’s another thing to deliver. The municipal utility in Palo Alto, CA, set an ambitious target of 33% renewable energy by 2015 and to ultimately deliver a carbon neutral electricity supply. They will reach 48% renewable power in 2017 and met the carbon neutral goal starting last year.

Learn more about the strategies one municipal utility pursued to drive down its carbon emissions and acquire solar energy in this interview with Jim Stack, Senior Resource Planner of the Palo Alto Utilities, recorded via Skype on Feb. 27, 2014.

How Can a Utility be Carbon Neutral?
The foundation of Palo Alto’s energy supply is hydropower, making up as much as half of their total electricity generation each year. But other renewable energy supplies the other half, at a time when most utilities have targets of 25% renewable or less. The chart illustrates how Palo Alto plans to get 23% of its energy from solar, 11% from landfill methane recovery, and 12% from wind power in 2017.

Screenshot-2014-05-01-16.26.24

The carbon neutral target, while impressive, doesn’t mean that no fossil fuels are used. The statement means that on an annual, net basis, the cities electric customers produce no carbon emissions.

Building on Low-Cost Solar
The drive toward renewable energy and a carbon neutral energy supply was aided by dramatically falling costs for solar energy. When the utility went out for bids in 2012, it found solar producers willing to sell the utility power for 7¢ per kWh, a price that’s remained relatively steady since then. Low cost solar energy has meant that the city’s nationally recognized green energy purchasing program, with 20% customer participation, eliminated the price premium because clean energy was no more expensive than traditional power.

Having Control Matters
“If you were a customer of an investor owned utility, you’d be much less likely to see a program like [Palo Alto’s] put in place simply because investor-owned utilities have a much more traditional business model focused on profits and the bottom line,” says Stack.

Local control was a key to the success of the pursuit of a low-carbon energy system in Palo Alto. They aren’t hampered by regulators and the city’s bond rating means the municipal utility can also access lower cost capital than investor-owned utilities.

Municipal ownership has one big drawback, however, making the transition to renewable energy that much more impressive.  The city can’t access the 30% federal tax credit for solar energy projects that private developers can.  While they can still sign contracts with these developers to deliver solar, they miss the economic opportunity of direct ownership.

Keeping it Local
Palo Alto hasn’t been able to develop as much power in town as it would like, confesses Stack. As a mostly built-up urban environment with high land costs, and in a very sunny environment, local solar energy costs nearly twice what it costs to buy from projects nearby. All their renewable power comes from California, however, within a two hour drive of the city.

The city does have programs focused on local distributed generation and energy efficiency, however. Already, 6.5 MW of solar energy has been installed on local rooftops (serving about 4% of peak demand). The utility intends to use its feed-in tariff, community solar, and other initiatives to increase local solar to 23 MW, serving 15% of peak energy demand and 4% of total sales.

Can it Work for You?
Stack says there’s nothing stopping other municipal utilities from moving in the same direction.  Renewable energy is less expensive than just about anything else and offers long-term price stability.

For communities without municipal utilities, he suggests lobbying for voluntary green purchase programs, community solar, and working on developing community-based renewable energy projects.

For more information on Palo Alto Utilities, see the section on Palo Alto in ILSR’s 2013 report showing 8 ways cities can boost their economy with local renewable energy: City Power Play.

Article by John Farrell, appearing courtesy Institute for Local Self-Reliance.



May 2, 2014 1 comment
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